Alivecor, Inc. v. Apple, Inc.

Filing 302

ORDER REGARDING BILL OF COSTS re 295 Bill of Costs, 300 Response, 301 Costs Taxed. Signed by Judge Jeffrey S. White on 3/28/2024. (kkp, COURT STAFF) (Filed on 3/28/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALIVECOR, INC.,
Plaintiff,

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Re: Dkt. Nos. 295, 300, 301

APPLE, INC.,
Defendant.

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United States District Court
Northern District of California

ORDER REGARDING BILL OF COSTS

v.

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Case No. 21-cv-03958-JSW

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Now before the Court is the Application for Bill of Costs filed by Defendant Apple, Inc.

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(“Apple”) and objections thereto filed by Plaintiff AliveCor, Inc. (“AliveCor”). The Court finds

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the matter appropriate for resolution without further briefing or oral argument. See Civ. L.R. 7-

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1(b).

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BACKGROUND
After hard-fought litigation that included more than 30 depositions, multiple experts on

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both sides, and cross-motions for summary judgment supported by a record of over 15,000 pages

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of documents and a hearing which lasted almost three hours, the Court granted summary judgment

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in favor of Apple. (Dkt. Nos. 285, 293.) Following its summary judgment order, the Court

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entered judgment in favor of Apple on February 6, 2024. (Dkt. No. 287.) Apple filed an

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Application for Bill of Costs on February 20, 2024. (Dkt. No. 295.) AliveCor filed a Notice of

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Appeal on March 6, 2024. (Dkt. No. 298.)

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Apple originally sought $132,445.64 in costs, consisting of $1,080.19 for service of a

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deposition subpoena, $110,513.15 for deposition transcripts, $9,379.80 for deposition exhibits,

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and $11,472.50 for reporting services at depositions. After the meet-and-confer process, Apple

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agreed to lower the amount sought per page of its deposition transcripts and to forego costs of

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serving the deposition subpoena, for a reduction of $7,196.85. (Dkt. No. 300.)
AliveCor opposes the imposition of any costs and objects specifically to Apple’s request

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for costs of deposition videos. (Dkt. No. 297.) AliveCor alternatively requests a stay of

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enforcement of the cost award without a supersedeas bond. (Id.)
The Clerk of Court reviewed the Bill of Costs and found $80,983.10 to be taxable. (Dkt.

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No. 301.) The parties did not move to review the Clerk’s findings. See Fed. R. Civ. Proc.

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54(d)(1) (“On motion served within the next 7 days, the court may review the clerk’s action.”).
ANALYSIS

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United States District Court
Northern District of California

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A.

Legal Standards Applicable to Taxation of Costs.

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Federal Rule of Civil Procedure 54(d)(1) provides that “costs—other than attorneys’

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fees—should be allowed to the prevailing party.” Fed. R. Civ. Proc. 54(d)(1). Accordingly, “Rule

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54(d) creates a presumption for awarding costs to prevailing parties; the losing party must show

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why costs should not be awarded.” Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 (9th

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Cir. 2003) (citing Stanley v. Univ. of Southern California, 178 F.3d 1069, 1079 (9th Cir. 1999)).

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The Court “need not give affirmative reasons for awarding costs; instead, it need only find that the

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reasons for denying costs are not sufficiently persuasive to overcome the presumption in favor of

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an award.” Id. at 945. The Court may refuse to award costs to a prevailing party on several

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recognized grounds, including: the losing party’s limited financial resources; misconduct on the

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part of the prevailing party; the importance and complexity of the issues; the merit of the

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plaintiff’s case, even if the plaintiff loses; and the chilling effect on future civil rights litigants of

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imposing high costs. See id. (internal citations omitted); see also Wright & Miller, The Court’s

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Discretion in Awarding Costs, Fed. Prac. & Proc. Civ. § 2668 (4th ed.).

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28 U.S.C. section 1920 “enumerates expenses that a federal court may tax as a cost under

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the discretionary authority found in Rule 54(d).” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

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U.S437, 441-42 (1987). Civil Local Rule 54-3 provides additional “standards for interpreting the

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costs allowed by section 1920.” Intermedics v. Ventritex, Co., No. C-90-20233, 1993 WL 515879,

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at *1 (N.D. Cal. Dec. 2, 1993).

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B.

AliveCor urges the Court to exercise its discretion to deny costs because the case presents

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issues of public importance and complex and difficult issues. The Court finds that AliveCor’s

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arguments are insufficient to overcome the presumption in favor of awarding costs.
This action, while of interest to the public, is fundamentally a dispute between AliveCor

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United States District Court
Northern District of California

The Court Declines to Exercise Its Discretion to Refuse to Award Costs.

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and Apple. AliveCor provides citation only to civil rights cases where the court determined

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imposing costs on plaintiffs of modest means would risk chilling future civil rights litigation. See

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Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 593 (9th Cir. 2000) (noting

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case raised “issues of the gravest public importance” regarding public school employment exam

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with disproportionate failure rates by members of racial minorities); Darensburg v. Metro. Transp.

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Comm'n, No. C-05-01597 EDL, 2009 WL 2392094, at *2 (N.D. Cal. Aug. 4, 2009) (noting

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allegations of race discrimination in transit funding were of public importance). There is no

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similar public interest or risk of chilling litigation here, where AliveCor represents it has sufficient

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means to pay costs and where AliveCor’s proposed antitrust market consisted of, at most, three

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companies.
The Court agrees with AliveCor that the issues were close and difficult, but difficulty alone

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is not enough to justify a denial of costs in this case. As Apple points out, the Court resolved

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AliveCor’s claims using “previously defined standards” rather than a “novel legal development.”

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Freyd v. Univ. of Oregon, No. 6:17-CV-00448-MC, 2019 WL 5682512, at *3 (D. Or. Oct. 25,

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2019); (Dkt. No. 300, at 5). Where the case does not “raise complex or novel legal issues,” a

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declination to impose costs is not warranted. Fowler v. California Highway Patrol, No. 13-CV-

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01026-TEH, 2014 WL 3965027, at *6 (N.D. Cal. Aug. 13, 2014).
AliveCor’s remaining objection to deposition transcript and recording costs was addressed

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by the Clerk, who reduced the transcript and recording costs substantially. The Court finds the

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Clerk’s taxation of prevailing party costs is proper.

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C.

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The Court Declines to Enter a Stay.
AliveCor requests a stay of enforcement without a supersedeas bond pending appeal. A

supersedeas bond allows a stay as a matter of right, but courts may exercise their discretion to stay
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execution without a bond or alternate form of security. Fed. R. Civ. Proc. 62; Cotton ex rel.

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McClure v. City of Eureka, Cal., 860 F. Supp. 2d 999, 1027 (N.D. Cal. 2012) (noting courts have

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“broad discretionary power to waive the bond requirement if it sees fit”) (quoting Townsend v.

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Holman Consulting Corporation, 881 F.2d 788, 796–97 (9th Cir. 1989)). “A waiver of the bond

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requirement may be appropriate where: (1) the defendant's ability to pay the judgment is so plain

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that the cost of the bond would be a waste of money; and (2) the opposite case, where the

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requirement would put the defendant's other creditors in undue jeopardy.” Id. (quoting Olympia

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Equip. Leasing Co. v. W. Union Tel. Co., 786 F.2d 794, 796 (7th Cir.1986)) (internal marks

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omitted).

United States District Court
Northern District of California

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While AliveCor states that it can pay the judgment, it provides no admissible evidence to

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that effect. AliveCor does not argue that the cost of the bond would waste money, and Apple

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protests that AliveCor did not seek its consent to request a stay. In contrast and by way of

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example, in the case cited by AliveCor, the party requesting a stay without a supersedeas bond

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obtained consent from the prevailing party, provided a detailed declaration of its assets, and

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committed to submitting quarterly and annual financial statements while the appeal was pending.

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Am. Color Graphics, Inc. v. Travelers Prop. Cas. Ins. Co., No. C 04-3518 SBA, 2007 WL

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1520952, at *2 (N.D. Cal. May 23, 2007). AliveCor’s request here lacks any similar support or

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reassurances to the Court and Apple. Thus, the Court denies the request.
CONCLUSION

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For the foregoing reasons, the Court awards $80,983.10 to Apple in costs as originally

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taxed by the Clerk. (See Dkt. No. 301.)

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IT IS SO ORDERED.

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Dated: March 28, 2024
______________________________________
JEFFREY S. WHITE
United States District Judge

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